99Were the referring court to find that the AGCM has shown to the requisite legal standard, in the decision at issue, that the manner in which SEN requested its customers’ consent to receive offers was biased in such a way as to favour the companies in the ENEL Group to the detriment of its competitors, the existence of such bias would preclude the finding that the difference in the quantity of information contained in the lists intended for EE and in the lists intended for competitors is due to the fact that the companies in the ENEL Group performed better on the free market or due to the attractiveness of the ENEL brand. The very existence of that bias would, by definition, make it impossible to determine whether there were objective causes for the difference in the consents given. Consequently, given that, in that scenario, that bias would stem from SEN’s conduct, that company should be responsible for the difference in the number of customers in the lists intended for EE and those intended for EE’s competitors.
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